Chemical fight offers early look at Obama's second-term EPA

Throughout the election season, Republicans warned against the excessive regulation that might result from a second Obama term. They lost, and so this week America might get its first peek at what they were talking about.

The Environmental Protection Agency is on the verge of abandoning a well-established negotiation process with the chemical industry, and may instead force a broad range of chemical companies to launch a disputed monitoring program. This Thursday may be the last time the sides get to hammer out a deal on how many waste water treatment sites must be monitored for the EPA to conduct an environmental -- as opposed to health -- risk assessment.

The negotiations are part of an "enforceable consent agreement" process which started in June. As the December 27 deadline approaches, a failure to reach an agreement is "increasingly likely," according to the Risk Policy Report, a trade publication. If no deal is reached, the EPA may order testing on its own.

The chemicals the EPA wants to test for, known as D4 and D5, are components of siloxanes -- the building blocks for silicone products. Siloxanes are ubiquitous, serving unique purposes in products ranging from airplanes to shampoo.

The industry has not opposed risk assessments or monitoring programs for these chemicals, but it has objected to the EPA's failure to consider independently collected environmental exposure information. The EPA's threat is to cut off negotiations and force a wasteful monitoring regime on the entire industry. To justify this threat, regulators insist on relying on outlandish models that contradict real-word data already collected and validated by government agencies both in the U.S. and Canada.

One of the silicone chemicals at issue, D5, was the subject of a thorough review by independent scientist for Environment Canada, an agency known for strict standards. The agency concluded that D5 does not pose a threat to the environment now or in the future.

The EPA shouldn't necessarily rely on Environment Canada's conclusions, but it should at least take it into account, along with existing data from testing conducted in the United States. Industry has sought to include these results, together with new monitoring from five additional sites. This should provide all the information necessary to conduct a risk assessment based on a full spectrum of conditions and environments.

Yet the EPA is insisting on requiring more than three times more additional monitoring than is scientifically justified. The EPA has backed off its demand for monitoring of 42 sites for traces of chemical that remain in the water, but it hasn't been able to validate its current demand for 16 sites. As its trump card, the agency has the threat of a return to its earlier Draconian demand, as opposed to offering a substantive response to industry's position.

If the sides don't reach agreement, industry and consumers will be left footing the bill of an unnecessarily costly program, with not a molecule of environmental protection, or better risk assessment, to show for it. This heavy-handed regulatory style has reached a point where it is less about political ideology than it is about good government and responsible use of regulatory powers.

The Obama administration's environmental regulatory approach has been to replace dispassionate risk assessment with agenda-driven campaigns that favor sound bites over sound science. If the EPA doesn't come back to the negotiating table with a better approach, congressional oversight committees will have some questions to ask. Some experts already consider the EPA's hard-line approach a regulatory short-cut, given Congress's decision not to give EPA additional authority through a reform of the Toxic Substances Control Act.

Congressional watchdogs will have to work overtime next year. They should start by asking regulators about the January 2011 executive order from President Obama, which stated, "Our regulatory system must protect public health, welfare, safety and our environment while promoting economic growth, innovation, competitiveness, and job creation....It must be based on the best available science." (Emphasis mine.)

Unless these questions are given center stage, Obama's agency-heads will continually outmaneuver not only Congress, but the will of the public.

Jeff Stier is a senior fellow at the National Center for Public Policy Research.